Would the Constitutional Treaty Help Alleviate the Union's Legitimacy Crisis?

Scandinavian Studies in Law, Vol. 52, pp. 371-382, 2007

19 Pages Posted: 28 Sep 2011

Date Written: November 16, 2006

Abstract

During the five years that is the life span of SIEPS we have witnessed increased attention to what is sometimes referred to as the ‘democratic deficit’ of the EU. Or perhaps better: an alleged ‘legitimacy deficit’. The Convention on the Future of Europe was in part a response to such worries, and at least three features of the Constitutional Treaty seem to have been introduced to quell these concerns: Increased democratic accountability, Increased visibility of human rights, and a new mechanism for the Principle of Subsidiarity.

What are we to make of these suggestions? My talk focuses of this question, for four reasons related to the host institution and our host country.

Firstly, the attention to this deficit is perhaps partly due to Sweden’s membership in the EU, and partly fuelled by SIEPS own publications over the five years it has existed.

Secondly, there are tensions between these three mechanisms, very visible from a Swedish point of view, where majoritarian democratic accountability stands out as a central condition of normative legitimacy. From that perspective it is not at all obvious that Subsidiarity and human rights constraints are legitimate: both of these arrangements explicitly limit the scope of centralised democratic rule in the form cherished in Sweden and other unitary states that celebrate Parliamentary Sovereignty, and that are characterized by very high levels of political trust in the authorities.

Thirdly, our judgment on this topic may affect other urgent issues: Our assessment of the Constitutional Treaty and its plight, what if any innovations should be kept, the current limbo of the EU, and where the EU should go from here.

Fourthly, I will suggest that the federal tradition of political thought makes it easier to assess these three mechanisms, applaud them, but also improve on them. With ‘federal’ I here simply mean that legal competences/authority is constitutionally divided between sub units of a political order and the centre bodies of that order. But the federal terminology may challenge deep rooted Swedish conceptions of state sovereignty, democracy, and legitimacy.

I first remind you of the bewildering literature of alleged symptoms, diagnoses and cures for this ‘legitimacy deficit’; then offer one unified account that combines normative political theory and elements of game theory, before I turn to comment on the three recommendations of the Constitutional Treaty. I shall argue that they jointly provide some normative improvement on the current European Union political order.

Suggested Citation

Follesdal, Andreas, Would the Constitutional Treaty Help Alleviate the Union's Legitimacy Crisis? (November 16, 2006). Scandinavian Studies in Law, Vol. 52, pp. 371-382, 2007. Available at SSRN: https://ssrn.com/abstract=1934823

Andreas Follesdal (Contact Author)

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

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